United States v. Murphy

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 17, 2000
• Docket: 99-10601
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-10601 Summary Calendar _______________

UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS

CHARLES HARDIN MURPHY, JR., Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Northern District of Texas (3:91-CR-376) _________________________ April 14, 2000

Before SMITH, BARKSDALE, and male entered the Southwest Savings Bank, PARKER, Circuit Judges. Dallas, Texas, demanded money at gunpoint from tellers Garrett and Alexander,1 and JERRY E. SMITH, Circuit Judge:* absconded with $5,794. Garrett and Alexander gave detailed descriptions of the Charles Murphy appeals the denial of his robber. Alexander also identified a .38 caliber motion to vacate, set aside, or correct his pistol, which was recovered, approximately a sentence pursuant to 28 U.S.C. § 2255, month later, from a Mercury Sable automobile claiming ineffective assistance of counsel and driven by Murphy, as either the same weapon prosecutorial misconduct. We affirm. or identical to the one brandished at her during the robbery. I. On September 26, 1991, a clean-shaven Darryl Neff, a bank customer, observed the robber leave the bank and enter a blue Honda.

* Pursuant to 5TH CIR. R. 47.5, the court has 1 determined that this opinion should not be These facts are taken almost verbatim from published and is not precedent except under the our opinion on Murphy’s direct appeal. See limited circumstances set forth in 5TH CIR. R. United States v. Murphy, 996 F.2d 94 (5th Cir. 47.5.4. 1993). Later on the day of the robbery, the car was Murphy’s name, a .38 caliber short barrel recovered a few blocks from the bank. Its revolver that matched the one used in both ignition had been damaged so that it could be robberies, a police scanner with a book of operated without a key. A police investigator police frequencies, a collection of tools testified that the damage to the ignition could (including a dent puller), a pair of sunglasses, have been accomplished with a dent puller. and a bloody syringe located on the drivers side of the car. Richard Crum, an FBI agent On October 3, 1991, a clean-shaven male who specialized in firearms and tool mark entered the United Savings Bank, Dallas, identification, testified that the tool marks on Texas, approached one of the tellers, and the ignitions of the blue and tan Hondas could robbed the teller at gunpoint using a .38 have been made with some of the tools found caliber pistol. Ms. Irvin, who was in the next in the red Honda or the Sable. teller’s booth, gave a detailed description of the robber. She observed the robber leave the Floyd, who had known Murphy for ten or building and enter a tan car. Before he exited, more years, identified him as the robber she activated her surveillance camera. Some depicted in the surveillance photos. Floyd of the money taken during the second robbery further testified that Murphy offered him contained an electronic tracking device $1,000 to rent a home for Murphy in Floyd’s concealed in a cutout of the center of some of name and that Murphy instructed him to drive the bills. off in the Sable when the two men were stopped. A light colored Honda was found approximately one block from the United Several witnesses of the two robberies Savings Bank shortly after the robbery. Its identified Murphy as the robber of the two ignition had been altered in a manner similar to banks. Murphy was convicted of two counts that of the blue Honda. On the same day as of robbery of a financial institution in violation the first robbery, a red Honda was stolen from of 18 U.S.C. §§ 2113(a) and (d) and two a location close to Southwest Savings Bank. counts of carrying a firearm during a crime of It was found after the second robbery, on violence in violation of 18 U.S.C. § 924(c). October 5, 1991, located around the corner from Murphy’s residence. The ignition had II. been removed in a manner similar to that of Murphy alleges six instances of ineffective the other two cars. Found in the vehicle was assistance of counsel and two instances of a photograph given to Murphy by a friend, a prosecutorial misconduct (knowingly using beer can with Murphy’s fingerprint on it, a perjured testimony and knowingly withholding tracker dollar bill with the center removed, and exculpatory identification evidence). The a bag containing assorted screwdrivers, pliers, district court rejected Murphy’s claims of and a dent puller. None of the items was in ineffective assistance on the merits and found the vehicle before its theft. he was procedurally barred from raising his claims of government misconduct.2 Approximately one month later, a police officer made a routine traffic stop of a We review ineffective assistance claims Mercury Sable near Cap City, Texas. Murphy under the two-prong standard articulated in was driving, and Randy Floyd was a front seat Strickland v. Washington, 466 U.S. 668 passenger. While the officer was performing (1984). We have discussed the first prong as a license and warrant check, Floyd drove the follows: Sable away, leaving Murphy by the roadside. The officer pursued and overtook Floyd a short distance down the road. Murphy fled on 2 Murphy filed his § 2255 motion before the foot but was located and arrested the next day. effective date of the AEDPA, so he needs no certificate of appealability. See United States v. The Sable contained a rental agreement in Carter, 117 F.3d 262, 264 (5th Cir. 1997).

2 To obtain relief, a criminal defendant Cir. 1983). We review findings of fact made must first demonstrate that counsel's in the course of deciding an ineffectiveness performance was deficient. . . . The claim for clear error but review the proper standard for measuring counsel’s performance and prejudice components de performance under the first prong of novo. See Motley, 18 F.3d at 1226. [Washington] is reasonably effective assistance. That is, the defendant must Murphy raised the claims of prosecutorial show that counsel’s representation fell misconduct for the first time in his § 2255 below an objective standard of motion. reasonableness. Our scrutiny of counsel’s performance must be highly After conviction and exhaustion or deferential, and we must make every wavier of any right to appeal, we are effort to eliminate the distorting effects entitled to presume that the defendant of hindsight. . . . Under [Washington], stands fairly and finally convicted. A there is a strong presumption that defendant can challenge his conviction counsel’s conduct falls within the wide after it is presumed final only on issues range of reasonable professional of constitutional or jurisdictional assistance. magnitude, and may not raise an issue for the first time on collateral review Motley v. Collins, 18 F.3d 1223, 1226 (5th without showing both “cause” for his Cir. 1994) (internal citations and quotation procedural default, and “actual marks omitted). prejudice” resulting from the error. This cause and actual prejudice standard The second Washington prong requires the presents a significantly higher hurdle defendant to demonstrate that counsel’s than the plain error standard that we deficient performance prejudiced the defense: apply on direct appeal.

To satisfy the prejudice prong of United States v. Shaid, 937 F.2d 228, 231-32 [Washington], the defendant must show (5th Cir. 1991) (en banc) (internal citations that there is a reasonable probability and quotation marks omitted). The “actual that, but for counsel’s unprofessional prejudice” standard requires more than a errors, the result of the proceeding showing of possibility of prejudice: The would have been different. A defendant must show that the trial errors reasonable probability is a probability “worked to his actual and substantial sufficient to undermine confidence in the disadvantage, infecting his entire trial with outcome. The defendant need not show error of constitutional dimensions.” United that counsel's deficient conduct more States v. Frady, 456 U.S. 152, 170 (1982).3 likely than not altered the outcome in the case, [b]ut it is not enough . . . that III. the errors had some conceivable effect A. on the outcome of the proceeding. Murphy first claims his counsel was ineffective for failing to interview and Id. (internal citations and quotation marks investigate Modena Harvey, the sister-in-law omitted). of Murphy’s mother. Murphy claims that Harvey could have placed Murphy at the home If one of the Washington prongs is determinative, we need not consider the other. See United States v. Kimler, 167 F.3d 889, 3 Murphy incorrectly argues both that the 893 (5th Cir. 1999). Murphy bears the burden district court should not have considered of demonstrating both Washington elements procedural default and that this court should not do by a preponderance of the evidence. See so. See Wiggins v. Procunier, 753 F.2d 1318, Martin v. Maggio, 711 F.2d 1273, 1279 (5th 1321 (5th Cir. 1985).

3 of Edna Murphy (Murphy’s mother) on the Murphy’s counsel, by affidavit, cites two day of the October 3 robbery. reasons for not calling Susan to testify. First, Murphy had given conflicting stories While Murphy claims his counsel never concerning the source of his money, and investigated Harvey, his counsel, by affidavit, therefore counsel believed the testimony could asserts that he gave the government Harvey’s constitute perjury. Second, it would not have name as a potential alibi witness, but chose not been strategically sound to implicate Murphy to present her testimony because he believed it in another felony solely to remove the limited would contradict other alibi testimony. implication of guilt a jury might draw from Murphy’s counsel did call Murphy’s mother, possession of money and flight. sister, and brother-in-law to establish Murphy’s presence at Edna Murphy's home. Although Susan’s testimony concerning Murphy’s allegation thus fails to demonstrate Murphy’s mustache would have corroborated that his counsel was deficient, and Murphy similar testimony of Edna Murphy and Mary further fails to demonstrate the requisite Tartarilla, its absence does not constitute prejudice if there were such a deficiency: The Washington prejudice. The decision not to potential duplicative testimony of one more call Susan to testify to Murphy’s felonious witness related to Murphy does not undermine behavior of writing bad checks was a confidence in Murphy’s convictions.4 legitimate strategic decision: “[A]n attorney’s strategic choices, usually based on information B. supplied by the defendant and gathered from a Murphy contends that his counsel was thorough investigation of the relevant law and ineffective for not interviewing potential facts, are virtually unchallengeable.” Bryant v. defense witnesses and for not interviewing Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) eyewitnesses to the crimes. The potential (internal quotation marks omitted). defense witnesses are Susan Murphy (Murphy’s estranged wife) and Anthony Murphy further alleges that Anthony Tartarilla (Murphy’s friend).5 Tartarilla would have testified to the presence of Murphy’s mustache in early October. Once Susan Murphy’s affidavit states that again, the lack of this corroborating testimony, Murphy had a full mustache on October1 and given the substantial evidence of Murphy's 5. Murphy argues Susan would have testified guilt, does not constitute Washington that Murphy had obtained money by writing prejudice. bad checks on a closed bank account, thereby explaining Murphy’s possession of money and Murphy’s contention that counsel was his reason for fleeing police. ineffective for failing personally to interview every eyewitness is likewise unavailing.6 Murphy’s counsel either personally interviewed, had an investigator interview, or at least reviewed the reports of, every witness 4 Although organizationally this opinion before that witness testified. As the district considers each claim of ineffective assistance court found, given the witnesses’ fairly independently, we recognize and apply the consistent identification of Murphy as the Washington prejudice element as a totality. All of robber and the incriminating evidence found in Murphy’s claims of prejudice, considered together, the red Honda and Sable, it was not do not undermine confidence in his convictions. unreasonable for counsel to decide that further 5 Murphy also alleges ineffective assistance for failure to interview Mary Tartarilla, but Mary was 6 interviewed by Murphy’s counsel prior to her This allegation is based solely on testimony at trial. She testified that Murphy eyewitnesses’ testimony, in response to questioning always wore a mustache, including in late October by Murphy’s counsel, that they had never spoken 1991. to his counsel previously.

4 investigation of eyewitnesses was unnecessary. D. Further, Murphy fails to assert any prejudice Murphy alleges that his counsel was that occurred because of the alleged failure to ineffective for failing to investigate the relevant interview. law and in failing to present available witnesses supporting his chosen line of defense. The C. chosen defense was that Murphy did not Murphy avers that counsel was ineffective commit the robberies and that the surveillance for failing to object during the cross- photographs were actually the best evidence examination of the final defense witness, FBI for the defense because Murphy looked Special Agent Skillestad, who identified a considerably different from the individual photograph as the photograph of Murphy that depicted in the photographs. Counsel bank tellers had identified as depicting the presented this defense, encouraged the jury to robber. Because no witness had so testified compare the surveillance photographs with the during the government’s case-in-chief, Murphy appearance of Murphy at trial, argued that argues that this in effect permitted the eyewitnesses’ descriptions were inconsistent, government to reopen its case by exceeding presented Murphy’s alibi for October 3, and the scope of direct examination. presented evidence that Murphy had not been clean-shaven for years. Murphy’s counsel argues that not objecting was a strategic decision to avoid drawing What counsel failed to do was to ask undue attention to the testimony. Even were Murphy’s mother, sister, and brother-in-law such a decision unreasonable, Murphy fails to whether Murphy was the person depicted in demonstrate prejudice, because there is no the photographs. Given their testimony of reason to believe the court would not have Murphy’s alibi, and that Murphy wore a allowed the government to reopen its case to mustache, this failure is not sufficient to elicit the testimony. demonstrate Washington prejudice. Counsel’s decision to rely primarily on the jurors’ own Murphy also complains because his counsel comparison of the surveillance photographs did not object when Skillestad gave the and Murphy’s presence at trial was not possibly erroneous testimony that Rukshana unreasonable, as evidenced by the fact that a Khan, a teller involved in the October 3 teller who identified a photograph of Murphy robbery, was shown six photographs and could not identify him in the courtroom.9 eliminated four. Khan actually testified that she was shown around six to eight E. photographs, and narrowed it down to two.7 Murphy contends that his counsel was This minor discrepancy did not prejudice ineffective for failing to object to prejudicial Murphy,8 and therefore he has failed to evidence, a two-sided fingerprint card bearing demonstrate Washington prejudice. Murphy's fingerprints. The front of the card contained four of Murphy’s alleged aliases, and the back bore the notation “armed and dangerous.” The government introduced the 7 card to show that a fingerprint found on a beer Another agent’s deposition states that Khan can in the red Honda was Murphy’s, but the was shown eight photographs. Khan’s testimony regarding the number of photographs was as follows: “I don't remember exactly but it was 9 around six to eight. I am not sure but I narrowed Murphy likewise contends that his counsel it down to two.” was ineffective for not obtaining an expert to compare his appearance to the depiction in 8 This is especially true given the fact that surveillance photographs. Given the stark Murphy’s counsel did verify on redirect that difference in appearance, it was not unreasonable Skillestad was not the agent who presented the to present this argument to the jury without expert photo-array to Khan. evidence.

5 government substituted a photocopy of the 550 F.2d 1036, 1048 (5th Cir. 1977), in which front of the card to be given to the jury. this court held evidence insufficient to warrant giving a flight instruction on retrial. We noted The front of the card also contained that the probative value of flight as an statistical information concerning Murphy, in admission by conduct was dependent on, inter particular that he was a white male, 5'9" tall, alia, the inference from consciousness of guilt who weighed 175 pounds. Murphy’s counsel to consciousness of guilt concerning the crime wanted this evidence before the jury to charged. See id. at 1049. Where the impeach the reports of eyewitnesses that defendant could be fleeing based on differed from these statistics. Even were it consciousness of guilt of a crime other than unreasonable for counsel not to require the that before the jury, a flight instruction may be aliases to be blocked out or otherwise improper. See id. at 1050. removed from the exhibit, Murphy did not suffer Washington prejudice. In United States v. Kalish, 690 F.2d 1144, 1155 (5th Cir. 1982), we noted that “we have F. consistently held evidence of flight to be Murphy argues that counsel was ineffective relevant evidence,” and thus “our standard of for failing to investigate circumstances review is whether the trial judge has abused his regarding his flight from police after he and discretion in determining that the probative Floyd were stopped in a routine traffic stop. value of the evidence outweighs the danger of Prior to trial, Murphy’s counsel asked Murphy unfair prejudice.” We distinguished Myers as whether there was evidence that could articulating the test for when a flight establish other reasons why Murphy might instruction is proper, as opposed to the test for have fled. Murphy responded in the when evidence of flight is admissible. See id. affirmative, namely that (a) there were at 1156. Moreover, we made plain that substantial amounts of heroin and cocaine in whereas on the record in Myers a flight the car, (b) Murphy had recently learned that instruction was not proper, it can be proper there was an outstanding warrant for his arrest even when the defendant may have a guilty resulting from a parole violation, and conscience for multiple offenses. See id. (c) Murphy had written a large number of bad at 1156-57. checks on a closed account. There was circumstantial evidence that Murphy’s counsel did not present any of Murphy’s flight was related to the robberies, this evidence, and the court gave a flight for investigators had spoken with members of instruction10 as part of the jury charge. His Murphy’s family, and the Sable contained counsel claims that it was a strategic decision relevant evidence of the robberies (tools and not to introduce evidence of the several other the .38 caliber pistol). Further, even were crimes committed by Murphy solely to avoid Murphy’s counsel deficient in not presenting the inference of guilt from evidence of flight. the other-crimes evidence, the error did not Counsel instead argued that a flight instruction rise to the level of Washington prejudice.11 was improper because there was no direct evidence that Murphy knew he was a suspect in the bank robberies. Murphy contends that it was ineffective assistance not to have raised the other-crimes evidence with the court.

Murphy cites United States v. Myers, 11 Murphy also argues that the court abused its discretion by ruling without an evidentiary hearing. No hearing was required, because the existing 10 A “flight instruction” is an instruction on the documentation conclusively demonstrates that inference that flight potentially demonstrates a Murphy is not entitled to relief. See United States consciousness of guilt. v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990).

6 IV. defense strategy was that the jury could Murphy argues that newly discovered recognize that he was not the person depicted evidence proves that the government in surveillance photographs, the absence of this knowingly used perjured testimony. He information did not prejudice Murphy’s trial. suggests also that the new evidence shows the government knowingly withheld exculpatory AFFIRMED.13 identification evidence.

A. The allegedly perjured testimony was given by Skillestad and Floyd. Skillestad may have mistakenly testified that Khan was shown six photographs, if she was actually shown eight. Floyd mistakenly testified that he had a prior conviction for conspiracy to import controlled substances, when his conviction actually was for conspiracy to obtain a controlled substance by fraud.12 These de minimis mistakes do not rise to the “actual prejudice” standard required by Shaid.

B. Murphy contends the government knowingly withheld exculpatory evidence that Donald Morris, Alan Duke, and Carlos Kirkland were shown bank surveillance photographs and stated that Murphy was not the one depicted therein. Murphy likewise contends that the government used unconstitutionally suggestive identification procedures with Janieth Moore and Donald Morris.

Morris, Duke, and Kirkland are friends of Murphy’s who were not eyewitnesses to the robberies or any other relevant events. Moore and Morris did not testify, and Murphy does not allege any link between the identification procedures used with those individuals and the identification procedures used for those who did testify.

Even assuming Murphy could satisfy the “cause” bar of procedural default, he fails to demonstrate actual prejudice resulting from the alleged errors. Given the substantial evidence of his guilt, and further that the

12 13 Floyd also testified that he had been convicted Murphy’s motions for oral argument by of burglary, possession of cocaine, and theft teleconference and for appointment of counsel to offenses. conduct oral argument are DENIED.